R v Smith - [2012] QDC 398

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Smith [2012] QDC 398

PARTIES:

R

v

SMITH, Leslie Glyn
(applicant/defendant)

FILE NO:

182/12

PROCEEDING:

Application for a permanent stay of the indictment

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

31 August 2012

DELIVERED AT:

Townsville

HEARING DATE:

29 August 2012

JUDGE:

Rafter SC DCJ

ORDER:

Application for permanent stay of the indictment dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – DELAY – where applicant charged with one count of rape – where complaint was made eighteen and a half years after the alleged incident – where further delay in commencement of proceedings of three and a half years – where applicant charged 22 years after the alleged offence – where delay meant no opportunity to gather forensic evidence – where delay impaired the memory of relevant witnesses to recall events and conversations – whether delay would lead to unfair trial – whether delay sufficient to justify a permanent stay of proceedings

Jago v District Court (NSW) (1989) 168 CLR 23, considered.

R v Edwards (2009) 255 ALR 399, considered.

R v Smith [1997] QCA 109, cited.

R v Wrigley [1998] QCA 412, cited.

R v Cossor [1999] QCA 403, cited.

Longman v The Queen (1989) 168 CLR 79, cited.

Crampton v The Queen (2000) 206 CLR 161, cited.

Doggett v The Queen (2001) CLR 343, cited.

COUNSEL:

A. Boe with P. Morreau for the applicant/defendant

M. Cowen for the respondent

SOLICITORS:

Biggs Fitzgerald Pike for the applicant/defendant

Director of Public Prosecutions for the respondent

Introduction

The applicant is charged that on a date unknown between 19 March 1989 and 16 April 1989 at Townsville he raped the complainant.

By this application he seeks an order permanently staying the indictment on the grounds of abuse of process and the impossibility of obtaining a fair trial.

Factual background

The complainant was aged 16 years 2 months at the time of the alleged offence. Although she was attending school, she had been drinking at licensed premises since the age of 14 years. At the time of the alleged offence the complainant was sexually active with her then partner.

The complainant alleges that she was raped by the applicant at his apartment following a social gathering. The offence is said to have occurred when the complainant remained at the apartment after all other guests had left. The circumstances of the alleged offence involved a degree of physical violence which included the applicant dragging the complainant to his second floor apartment.

A complaint was not made to the police for some eighteen and a half years. The complainant was then living in Adelaide. By this stage she was 34 years of age. She contacted a police officer in Townsville and was advised to report the matter to the South Australian Police. Between December 2007 and May 2009 the complainant attended the South Australian Police on five…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Smith

Details

AGLC: R v Smith [2012] QDC 398
Case: [2012] QDC 398
Decision Date: 31 August 2012

CaseChat Overview and Summary

The applicant, Smith, was charged with one count of rape following an incident that allegedly took place over eighteen years prior. The case was heard in a relevant Australian court. Smith applied for a permanent stay of the indictment on the basis that the delay in charging him, compounded by the delay in commencing the trial, had prejudiced his right to a fair trial.

The court considered whether the delay was sufficient to warrant a permanent stay of proceedings. The court examined the prejudice to the applicant caused by the delay, including the inability to gather forensic evidence and the impairment of the memory of relevant witnesses. The court also considered whether the delay would lead to an unfair trial for the applicant.

In dismissing the application for a permanent stay of the indictment, the court found that the delay, while significant, did not necessarily lead to an unfair trial. The court held that the delay did not prejudice the applicant to such an extent that a permanent stay was warranted. The court found that the applicant had not demonstrated that the delay would result in a failure of justice.

The court dismissed the application for a permanent stay of the indictment. The case proceeded to trial.

Orders

Orders of the court

Application for permanent stay of the indictment dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Smith [2012] QDC 398
PARTIES:	R v SMITH, Leslie Glyn (applicant/defendant)
FILE NO:	182/12
PROCEEDING:	Application for a permanent stay of the indictment
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	31 August 2012
DELIVERED AT:	Townsville
HEARING DATE:	29 August 2012
JUDGE:	Rafter SC DCJ
ORDER:	Application for permanent stay of the indictment dismissed.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – DELAY – where applicant charged with one count of rape – where complaint was made eighteen and a half years after the alleged incident – where further delay in commencement of proceedings of three and a half years – where applicant charged 22 years after the alleged offence – where delay meant no opportunity to gather forensic evidence – where delay impaired the memory of relevant witnesses to recall events and conversations – whether delay would lead to unfair trial – whether delay sufficient to justify a permanent stay of proceedings Jago v District Court (NSW) (1989) 168 CLR 23, considered. R v Edwards (2009) 255 ALR 399, considered. R v Smith [1997] QCA 109, cited. R v Wrigley [1998] QCA 412, cited. R v Cossor [1999] QCA 403, cited. Longman v The Queen (1989) 168 CLR 79, cited. Crampton v The Queen (2000) 206 CLR 161, cited. Doggett v The Queen (2001) CLR 343, cited.
COUNSEL:	A. Boe with P. Morreau for the applicant/defendant M. Cowen for the respondent
SOLICITORS:	Biggs Fitzgerald Pike for the applicant/defendant Director of Public Prosecutions for the respondent